1. When a 42 U.S.C. § 1983 (1994) claim is asserted, a State actor may not generally be held liable under the Due Process Clause of the United States Constitution for private misdeeds. The elements necessary to prove one of the recognized exceptions to this rule, the danger creation theory, are: (1) The plaintiff/victim must be a member of a limited and specifically definable group; (2) the defendant's conduct specifically put members of that group at substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious or known; (4) the defendant acted recklessly in conscious disregard of that risk; and, (5) the conduct, when viewed in the totality of the circumstances, is shocking to the conscience.

2. Under the facts of this case, the trial court properly determined that the State actor's conduct was not reckless and did not shock the court's conscience, as there was no proof that the State actor was aware of a risk so great that it was highly probable that the injuries would follow or that the State actor proceeded in conscious disregard of a known danger.

3. Negligence only exists where there is a duty owed by one person to another and a breach of that duty occurs. In order to recover, one must show a causal connection between a duty breached and an injury received.

4. Generally, in the absence of a "special relationship," one has no duty to control the conduct of a third party to prevent harm to others. A special relationship may exist, however, with persons in charge of one with dangerous propensities or persons with custody of another.

5. One who takes charge of a third person whom he or she knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him or her from doing such harm.

6. A parole officer does not take charge or exercise control over a parolee so as to create a special relationship between the officer and the parolee, thereby imposing a duty upon the State to control the conduct of the parolee to prevent harm to other persons or property. The State is not the virtual guarantor of the safety of each and every one of its citizens from illegal and unlawful actions of every parolee or person released from custody under any type or kind of supervision.

7. In the absence of a specific threat of harm, the State has no common-law duty to warn third parties of the dangerous propensities of parolees.

8. Liability cannot be established by the failure to follow a written personnel policy unless an independent duty of care is owed to the injured party.

9. Although an employer may be liable for injuries to a third person which are the result of the incompetence or unfitness of an employee where the employer was negligent in employing or retaining the employee when the employer knew or should have known of such incompetence or unfitness of the employee, liability normally only attaches to acts occurring at the employer's business location or committed during the conduct of the employer's business.

10. In order to find an employer liable for negligently hiring or retaining an employee, there must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries sufferedby the third person; the employer must, by virtue of knowledge of the employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of continued employment of that employee; and the harm which results must be within the risk created by the known propensity.

11. Employers are not required to ascertain the detailed history of every employee, nor must they terminate the employment of an individual who is performing acceptable services and is clearly not unfit or incompetent, but who does pose some degree of risk due to previous actions.

Appeal from Crawford district court; DONALD R. NOLAND, judge. Opinion filed June 5, 1998.
Affirmed in part and reversed in part.

Donald Patterson, of Fisher, Patterson, Sayler & Smith, of Topeka, argued the cause, and Michael K. Seck, of the same firm, of Overland Park, was on the briefs for appellants/cross-appellees HTG, Inc. d/b/a Hamilton's and Thomas E. Hamilton.

Lisa A. Mendoza, special assistant attorney general, argued the cause, and
Edward F. Britton, Jr.,
of Kansas Department of Corrections, was on the briefs for appellants/cross-appellees
Kansas
Department of Corrections and Robert Schirk.

Timothy A. Short, of Spigarelli, McLane, & Short, of Pittsburg, and
James F. Adler, of Adler &
Manson, L.C., of Kansas City, Missouri, argued the cause, and Carlton Kennard,
Esq., of Pittsburg, was
with them on the briefs for appellees/cross-appellants.

The opinion of the court was delivered by

LARSON, J.: Gene and Peggy Schmidt, individually and as heirs of their
daughter Stephanie Schmidt, and Gene as administrator of her estate, brought these
personal injury and wrongful death actions against Stephanie's former employer, HTG,
Inc. d/b/a Hamilton's, Thomas E. Hamilton, the Kansas Department of Corrections
(KDOC), and Robert Schirk, a state parole officer. On June 30, 1993, Stephanie was
raped and killed by Donald Ray Gideon, who had been conditionally released from
prison by mandatory operation of law and was under the supervision of Schirk. The
Schmidts contend that Stephanie's death was a result of the KDOC's and Schirk's
failure to notify Hamilton, Gideon's employer, of defendant's prior convictions for rape
and aggravated sodomy and that Hamilton negligently hired and retained Gideon as an
employee. A 42 U.S.C. § 1983 (1994) claim was also made against the KDOC and
Schirk.

The defendants moved for summary judgment, essentially alleging there was no
duty owed to Stephanie, causation was lacking, and the KDOC and Schirk were entitled
to immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.
The
trial court granted Schirk and the KDOC summary judgment regarding the Schmidts' §
1983 claims, but denied the remaining summary judgment motions. The trial court
granted permission for the defendants to file an interlocutory appeal and for the
Schmidts to file their cross-appeal. The cases were consolidated and transferred to us
pursuant to K.S.A. 20-3018(c).

Factual Statement

Donald Ray Gideon was conditionally released from prison by mandatory
operation of law on November 5, 1992, having served approximately 10 years in prison
for convictions of aggravated rape and sodomy of a young college woman. Prior to his
mandatory release, Gideon had been denied parole at every prior parole hearing.
Gideon completed the Sexual Offender Treatment Program while incarcerated.

Gideon was supervised by Robert Schirk. Schirk had worked for the KDOC for
12 years as a parole officer and had completed its basic and annual training
requirements. He had previously supervised other sex offenders.

Schirk completed a Risk and Needs Assessment of Gideon to determine his
level of risk and likelihood of reoffending and to establish the level of supervision he
required. Gideon was assessed as high risk, although the KDOC policy so classifies all
sex offenders.

When released, Gideon signed a conditional release certificate imposing certain
conditions on his release. In addition to these requirements, Schirk ordered Gideon to
meet with a mental health therapist and to obtain employment. Schirk possessed the
inherent authority to impose additional conditions of release if warranted.

In 1992 and 1993, the KDOC had an unwritten policy which required the parole
officer to give notice of a parolee's criminal history to any third party who was
determined, in the parole officer's discretion, to be at risk through association with a
parolee. The present policy regarding third-party notification has been reduced to
writing and requires employer notification of a parolee's criminal history.

HTG, Inc. d/b/a Hamilton's opened for business in Pittsburg, Kansas, in
December 1992. Hamilton had agreed to manage the restaurant for HTG, Inc.
Hamilton hired and fired all employees of the restaurant. He had extensive experience
in the food service industry and had hired approximately 1,000 employees. He had
never run a records check on any potential employee, nor had he ever fired, or been
told to fire, anyone for falsifying an employment application.

Gideon initially was employed at Superior Industries but quit soon thereafter.
Gideon then obtained employment at Hamilton's Restaurant in December 1992, without
any involvement of Schirk. Gideon did not inform Hamilton of defendant's criminal
record or tell him he was on parole. Hamilton did not run a background check on
Gideon before hiring him, nor did he check Gideon's references or employment history.

Hamilton also hired Stephanie, a Pittsburg State University student, who started
working in December 1992. She remained employed until mid-June 1993, when she
left Hamilton's after a dispute and did not return.

In February 1993, Gideon admitted to Hamilton he had been in prison and was
on parole. Gideon lied to Hamilton and stated he had been incarcerated as a result of a
bar fight where he had severely beaten a man with an axe handle. Hamilton never
attempted to verify this story, which eventually became generally known by the other
employees at Hamilton's, including Stephanie.

Hamilton learned Gideon had a parole officer and was attending counseling.
Gideon informed Schirk that Hamilton knew he was on parole, but Schirk never
contacted Hamilton to determine if the information divulged was correct. Hamilton had
a chance meeting with Schirk at a convenience store in May or June 1993, in which
Hamilton told Schirk that Gideon was doing fine at his job. Hamilton did not inquire
about Gideon's conviction, nor did Schirk volunteer any information.

Hamilton never received any complaints from his employees concerning
Gideon's conduct. Gideon was polite, dependable, and soft-spoken, and the
waitresses seemed to like him. Stephanie told her father that Gideon was nice to her,
never tried to hit on her, helped protect the waitresses' tips, and that she trusted him.
Hamilton also trusted Gideon, permitting his two sons to work in the restaurant and
allowing Gideon to transport his fiancee and daughter to work.

Gideon once told Hamilton he had slapped a woman for insulting him and thrown
her purse down the stairs. He also informed Hamilton he had told a woman to leave his
apartment unless she had oral sex with him. On one occasion, Hamilton gave Gideon
a day off work after he had been involved in a fight at a local tavern.

Schirk never informed Hamilton or any of the restaurant employees that Gideon
was a paroled sex offender and stated he did not disclose this information because he
was concerned Gideon would be fired. Schirk's goal was to assist Gideon in
reintegrating into society, and Schirk believed society is better protected from recidivism
by ensuring that parolees are employed and self-supporting. By May 1993, Schirk no
longer believed Gideon would lose his employment if he informed Hamilton of Gideon's
past criminal history.

Hamilton stated he would have informed Schirk of Gideon's inappropriate
conduct if he had been aware of Gideon's actual criminal history. Hamilton indicated he
would not have initially hired Gideon had he been aware of Gideon's true criminal
history and would have informed his employees about it had he later been informed.

Schirk believed Gideon was adequately complying with the conditions of his
parole. Gideon reported to Schirk as directed, maintained employment, attended
counseling, made restitution and costs payments, and reported spending leisure time in
appropriate pursuits. In May 1993, Gideon's supervision status was relaxed to
"intermediate." Schirk indicated he might have requested the revocation of Gideon's
parole had he known of the incidents of inappropriate conduct with women which
Gideon had described to Hamilton.

Schirk was aware that young women were employed at Hamilton's. He
acknowledged that female employees of Hamilton's were at a risk of harm due to their
association with Gideon, although Schirk specifically stated he "did not feel that there
was a third party at risk."

On the night of June 30, 1993, Stephanie and several friends went to a bar in
Frontenac, Kansas, to celebrate her birthday. Gideon was at the bar. Stephanie
became ill and accepted a ride home from Gideon. She was never again seen alive.

In the Schmidts' personal injury and wrongful death suit, they alleged the
Hamilton defendants breached a duty owed to Stephanie and to them by negligently
hiring and retaining Gideon as an employee at Hamilton's. The Schmidts claimed the
State defendants breached both a common-law duty and KDOC policy by failing to
warn Hamilton of Gideon's criminal history. The Schmidts also made 42 U.S.C. § 1983
claims against Schirk and the KDOC.

In denying motions for summary judgment, the trial court ruled against the
Hamilton defendants as to their claims that they owed no duty to Stephanie or the
Schmidts and that the breach of any such duty did not proximately cause the Schmidts'
injuries. The court also determined that a special relationship existed between the
State defendants and Gideon, in addition to KDOC policy, giving rise to a duty to warn,
and rejected the State defendants' claims to immunity under the KTCA. The court did
reject the Schmidts' § 1983 claims, holding the record did not support a showing of
reckless conduct under the totality of the surrounding circumstances such that the
court's conscience was shocked.

The trial court issued a K.S.A. 60-2102(b) order that its rulings on the summary
judgment motions involved controlling questions of law as to which there is a substantial
ground for difference of opinion such that an immediate appeal would materially
advance the termination of litigation. The Hamilton and State defendants all appeal
their adverse rulings. The Schmidts cross-appeal the dismissal of their § 1983 claims.
The Court of Appeals granted permission to take the interlocutory appeals.

Standard of review:

A party is entitled to summary judgment if "there is no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as a matter of law."
K.S.A. 60-256(c).

"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any
material fact and that the moving party is entitled to judgment as a matter of law. When
opposing a motion
for summary judgment, an adverse party must come forward with evidence to establish a dispute
as to a
material fact. In order to preclude summary judgment, the facts subject to the dispute must be
material to
the conclusive issues in the case." Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).

We are obligated on appeal to resolve all facts and inferences reasonably drawn
from the evidence in favor of the party against whom summary judgment was entered.
Summary judgment should be denied where reasonable minds could differ as to the
conclusions to be drawn from the evidence. Gragg v. Wichita State Univ., 261 Kan.
1037, 1044, 934 P.2d 121 (1997).

The trial court's rulings that the State defendants and Hamilton's owed a
recognizable duty to Stephanie and that Schirk and the KDOC were not immune from
liability under exceptions to the KTCA are all questions of law. See Gragg, 261
Kan. at
1044; Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 451, 912 P.2d 729 (1996).
We
have unlimited review of questions of law. T.S.I. Holdings, Inc. v. Jenkins, 260
Kan.
703, 716, 924 P.2d 1239 (1996).

§ 1983 claims

In granting summary judgment in favor of the KDOC and Schirk on the Schmidts'
§ 1983 claims, the trial court first noted that the Schmidts acknowledge their § 1983
claim against the KDOC is not presently allowed under the law. The trial court then
held that as to the § 1983 claim against Schirk, the Schmidts had been unable to prove
that their claim fell within one of the exceptions to the general rule that a State actor
may not be held liable under the Due Process Clause to the United States Constitution
for private misdeeds. Citing DeShaney v. Winnebago Cty. Dept. Soc. Servs. Dept.,
489
U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), the court noted that the two
recognized exceptions are: (1) the special relationship doctrine, and (2) the danger
creation theory. Both the Schmidts and the trial court focused exclusively on the
second exception, recognizing that the first was not applicable.

Federal courts have established the elements necessary for proving this second
exception: (1) The plaintiff/victim must be a member of a limited and specifically
definable group; (2) the defendant's conduct specifically put members of that group at
substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious or
known; (4) the defendant acted recklessly in conscious disregard of that risk; and (5)
the conduct, when viewed in the totality of the circumstances, is shocking to the
conscience. Collins v. Harker Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct.
1061 (1992); Medina v. City and County of Denver, 960 F.2d 1493 (10th Cir. 1992).

The trial court decided that Schirk's conduct did not meet the elements of the
danger creation theory primarily because it found his conduct was not reckless or
shocking to its conscience. The court held:

"Although plaintiffs argue quite strongly that Schirk's conduct was reckless, the Court
disagrees.
Arguably Schirk's conduct is actionable in the traditional 'tort' sense of the word, yet the Court
does not
find that the record supports a showing of reckless conduct. That is, the plaintiffs have failed to
demonstrate that Schirk was aware of a risk to Ms. Schmidt so great that it was highly probable
that
serious harm would occur. Nor have the plaintiffs demonstrated that Schirk proceeded in a
conscious and
unreasonable disregard of probable consequences with an intent to harm or an intent to place Ms.
Schmidt in an unreasonable risk of harm. Again, it can perhaps be argued that Schirk's conduct
was
negligent, yet the complained of conduct falls short of that which is contemplated by a Section
1983 claim.

"The facts which were developed in the discovery phase support this conclusion.
Undeniably
Schirk was aware that sex offenders are at a high risk of re-offending. A logical extension of this
awareness would be the knowledge that Gideon's female co-employees were at risk. Yet Schirk
at that
point in time had been given no reason to believe that Gideon was engaging in any inappropriate
behavior
which focused on the Hamilton waitresses. Gideon reported to Schirk as ordered, indicated no
problems
at work, and had maintained the same job for seven months. There was nothing about Gideon's
known
conduct which would indicate to Schirk that the Hamilton waitresses were in specific danger of
imminent
harm. Accordingly, the plaintiffs have been unable to demonstrate either an intent to
harm or an intent to
place a person unreasonably at risk of harm, as per the requirement of Medina, supra.

"As previously noted, the Court is required to consider the totality of the surrounding
circumstances in ruling on the propriety of a Section 1983 claim. [Citation omitted.] In doing
so, the Court
notes that Schirk's role in the supervision of Gideon involved the balancing of competing
interests: the
protection of the public versus the rehabilitation of the offender. This at times is a difficult
balancing act to
accomplish. The Court has closely scrutinized Schirk's actions in fulfilling this role. The Court
does not
find that Schirk's errors, if any, are so egregious and outrageous that the Court's conscience is shocked."

The Schmidts have extensively briefed this issue and have argued that the facts
of this case are comparable to many cases where § 1983 liability was imposed and
distinguishable from many cases where no liability was found. We hold, however, that
the trial court's analysis of this issue was sound and correct.

The trial court focused on the definition of reckless conduct "as an awareness or
knowledge of an 'obvious risk that was so great that it was highly probable that serious
harm would follow and he or she proceeded in conscious and unreasonable disregard
of the consequences.' Medina, [960 F.2d at] 1496." Further, the court, citing
Collins,
503 U.S. at 127-28, noted the shocking to the conscience standard cannot be met by
ordinary negligent conduct, but rather presupposes deliberate wrongful decisions that
must be more than an ordinary tort to be actionable.

In the present case, as will be further discussed, we find that Schirk owed no
duty to warn Stephanie's employer of Gideon's criminal history and dangerous
propensities such that liability could be imposed on a theory of negligence. As Schirk's
conduct is not deemed to be negligent, it is not possible for this same conduct to be
considered reckless and shocking to the conscience. Although the end result was
clearly tragic, the Schmidts have failed to establish that Schirk was aware of an obvious
risk so great that it was highly probable that the attack upon Stephanie would follow.
Schirk most definitely did not intend any harm to come to Stephanie or Gideon's other
co-workers. In light of the knowledge he possessed pertaining to Gideon's conduct
during his 7 months of employment at Hamilton's, Schirk did not proceed in conscious
disregard of an obvious danger.

We affirm the trial court's grant of summary judgment on the § 1983 claims.

Duty--State defendants

The KDOC and Schirk allege that under Kansas case law, they owed no duty to
warn of Gideon's criminal history and possible danger to young women. The Schmidts
claimed in their petition that Schirk owed a duty to warn Hamilton, Gideon's employer,
of Gideon's prior crimes, and that the breach of this duty proximately caused their
injuries.

The trial court held that because Gideon was a parolee under the direct
supervision of Schirk, a special relationship existed such that Schirk had a duty to warn
readily identifiable groups of potential victims. Further, the court noted that because the
KDOC had adopted an unwritten policy of warning individuals potentially at risk, it was
required to administer the policy in an effective manner.

We have repeatedly stated that negligence only exists where there is a duty
owed by one person to another and a breach of that duty occurs. In order to recover,
one must show a causal connection between a duty breached and an injury received.
Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).

"In Kansas negligence is never presumed. Blackmore v. Auer, 187 Kan. 434,
440, 357 P.2d 765
(1960). This court in Blackmore commented it may be said negligence is the failure
to observe, for the
protection of the interests of another person, that degree of care, precaution and vigilance which
the
circumstances justly demand, as a result of which such other person suffers injury. 187 Kan. at
440.
Negligence is not actionable unless it involves the invasion of a legally protected interest, the
violation of a
right. In every instance, before an act is said to be negligent, there must exist a duty to the
individual
complaining, the observance of which would have averted or avoided the injury. . . . An act is
wrongful, or
negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the
risk of
damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is
risk to
another or to others within the range of apprehension. [Citation omitted.] The existence of
negligence in
each case must depend upon the particular circumstances which surrounded the parties at the
time and
place of the occurrence on which the controversy is based." Durflinger, 234 Kan. at 488-89.

Generally, in the absence of a "special relationship," there is no duty to control
the conduct of a third party to prevent harm to others. Calwell v. Hassan, 260 Kan.
769, 778, 925 P.2d 422 (1996). A special relationship may exist, however, with
persons in charge of one with dangerous propensities or persons with custody of
another. C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 (1993). We have not, in any
previously reported Kansas case, extended or found a "special relationship" to exist
between one conditionally released from incarceration by mandatory operation of law
and the State or its duly authorized employee who is responsible to supervise such
individual. We first consider whether we should do so under the facts of this case.

The Restatement (Second) of Torts § 315-20 (1965) sets forth the basic rules
regarding liability for the conduct of third persons:

"§ 315 General Principle

"There is no duty so to control the conduct of a third person as to prevent him from causing
physical harm
to another unless

(a) a special relation exists between the actor and the third person which imposes a duty
upon
the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the other a
right to
protection."

Comment c to § 315 provides:

"The relations between the actor and a third person which require the actor to control the
third
person's conduct are stated in §§ 316-319. The relations between the actor and the
other which require
the actor to control the conduct of third persons for the protection of the other are stated in
§§ 314A and
320."

Sections 316, 317, and 318 of the Restatement relate to the duty of a parent to
control the conduct of a child, the duty of a master to control the conduct of a servant,
and the duty of a possessor of land to control the conduct of a licensee, respectively,
and none are applicable to our case.

Section 319 of the Restatement reads:

"§ 319. Duty of Those in Charge of Person Having Dangerous Propensities

"One who takes charge of a third person whom he knows or should know to be likely to
cause bodily harm
to others if not controlled is under a duty to exercise reasonable care to control the third person to
prevent
him from doing such harm."

Section 320 of the Restatement requires those taking custody of a person to use
reasonable care to control the conduct of third persons so as to prevent them from
harming the person in custody. This section does not apply to the facts of the present
case, as Stephanie clearly was never in the custody of the KDOC or Schirk.

Section 319 is the only section remotely applicable to our situation. However, we
find neither Schirk nor the KDOC had charge of Gideon to the extent necessary to fall
within this section. The Comment to the Restatement (Second) of Torts § 319 states:

"Comment:

"a. The rule stated in this Section applies to two situations. The first situation is one in
which the
actor has charge of one or more of a class of persons to whom the tendency to act injuriously is
normal.
The second situation is one in which the actor has charge of a third person who does not belong
to such a
class but who has a peculiar tendency so to act of which the actor from personal experience or
otherwise
knows or should know.

"Illustrations:

"1. A operates a private hospital for contagious diseases. Through the negligence of the
medical
staff, B, who is suffering from scarlet fever, is permitted to leave the hospital with the assurance
that he is
entirely recovered, although his disease is still in an infectious stage. Through the negligence of
a guard
employee by A, C, a delirious smallpox patient, is permitted to escape. B and C communicate
the scarlet
fever and smallpox to D and E respectively. A is subject to liability to D and E.

"2. A operates a private sanitarium for the insane. Through the negligence of the guards
employed by A, B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A is
subject to liability to C."

In refusing to grant summary judgment, the trial court primarily relied on two
cases from other jurisdictions, Division of Corrections v. Neakok, 721 P.2d 1121
(Alaska 1986), and Rieser v. District of Columbia, 563 F.2d 462 (D.C. Cir. 1977), to
support the belief that a special relationship exists between a parole officer and a
parolee so that a duty is owed to protect third persons. We first determine if the trial
court correctly concluded Schirk was "in charge of" Gideon to the extent necessary to
form a § 319 special relationship and, if it did, whether the duty to protect third parties
extends to and includes a duty to warn either the public at large or a limited class of
persons having a current or previous involvement with the parolee.

We utilized § 319 in Kansas in Cansler v. State, 234 Kan. 554, 675
P.2d 57
(1984), where we found that the Kansas State Penitentiary owed a duty to warn local
law enforcement officers of the escape of armed and dangerous prisoners who had
been in the charge of the penitentiary. This was a prison escape case, and we had no
problem holding the State was in charge of seven prison escapees, all of whom were
alleged to have been serving life terms after convictions for murders in various degrees.
This is a far cry from imposing like obligations on the State as to every prisoner
released from incarceration under parole or conditionally released by mandatory
operation of law after serving a sentence less good time credits.

Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), a
negligence
case involving a person on conditional release who committed multiple murders at the
University of Kansas Medical Center, refrained from addressing the question of whether
a duty to warn or control existed and rendered judgment against plaintiffs by directly
addressing the question of whether the adult authority was entitled to immunity under
the KTCA. Thus, the question of whether § 319 applies to those on parole such that a
duty exists has not previously been directly addressed in this state.

The Alaska court in Neakok, 721 P.2d at 1126, relied upon by the trial court,
determined that a parole officer maintained sufficient control over a parolee to create a
special relationship such that a duty was owed by the State, "both because of its
increased ability to foresee the dangers the parolee poses and because of its
substantial ability to control the parolee." The Alaska court compared the relationship
to that in Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 131 Cal.
Rptr.
14, 551 P.2d 334 (1976) (psychotherapist and patient); and Semler v. Psychiatric
Institute of Washington, D.C., 538 F.2d 121 (4th Cir.), cert. denied 429 U.S.
827 (1976)
(state hospital and patient), and held the relationship between the State and a parolee
was comparable to justify imposition of a duty to control his or her conduct. Neakok
is
factually different in that it involved the return of a parolee to a remote village without
police officers or alcoholic counseling. It is not sufficient authority for the result reached
by the trial court in the present case.

Although Rieser, 563 F.2d 462, did involve a parole officer and his parolee,
the
opinion did not comment on the application of the "special relationship" required in
order for § 319 to apply. The Rieser court found that a parole officer owed a
duty to
warn potential employers of a parolee's criminal history and to place controls upon the
type of work he or she could engage in. The parole officer in Rieser assisted a
convicted rapist in obtaining employment as a maintenance worker at an apartment
complex. Rieser was subsequently raped and strangled by the parolee, who had
access to her apartment. On a referral form, the officer listed only that the parolee had
been convicted of robbery, failed to mention that he was a suspect in three murders
which had occurred at the apartment community he had previously worked at, and
placed no restrictions upon the type of work appropriate to him. Due to these
distinguishable facts, Rieser is not persuasive authority in this instance.

The most helpful case to the Schmidts' arguments as to the existence of a
"special relationship" under § 319 is Taggart v. State, 118 Wash. 2d 195, 223,
822 P.2d
243 (1992), where it was held that "a parole officer takes charge of the parolees he or
she supervises despite the lack of a custodial or continuous relationship." While this
had the effect of imposing liability under § 319, we reject this overbroad construction
which escalates the State's responsibility to that of the virtual guarantor of the safety of
each and every one of its citizens from illegal and unlawful actions of every parolee or
person released from custody under any type or kind of supervision.

The better-reasoned and more logical approach is that taken in Fox v. Custis,
236 Va. 69, 75, 372 S.E.2d 373 (Va. 1988), which held that state parole officers did not
take charge or exercise control over a parolee within the meaning of § 319, giving rise
to any "special relationship." The Virginia Supreme Court held:

"The relationship between the parolee and officer is usually continuing because parole
normally is for an
extended period of time. But to 'supervise and assist' during this period does not mean to assert
custody
in the sense that the parolee is in the personal care and control of the officer. While the record
does not
show the terms and conditions of Mason's parole, parolees ordinarily are essentially free to
conduct their
day-to-day affairs, adhering to specific rules and reporting certain activities to the parole officer
as they
occur or are planned. The applicable statute does not contemplate continuing hourly or daily
dominance
and dominion by a parole officer over the activities of a parolee.

"Therefore we hold that the defendants did not take charge of or exercise control over
Mason
within the meaning of accepted rules of tort law articulated in Restatement §§
315(a) and 319." 236 Va. at 75.

This same logic and rule has been utilized by several other states. See Small v.
McKennan Hosp., 403 N.W.2d 410 (S.D. 1987) (parole officer for parolee placed on
maximum supervision status did not take charge of parolee so as to impose liability
upon officer when parolee abducted woman from parking lot and raped and murdered
her); Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985) (probation officer did
not
take charge of probationer so as to establish duty to parents of child injured in auto
accident by intoxicated probationer who had known propensities to drive while drunk);
see also Seibel v. City and County of Honolulu, 61 Hawaii 253, 602 P.2d 532
(1979).

In Calwell v. Hassan, 260 Kan. at 780, we recognized that we have only
imposed
a duty to control the conduct of third persons pursuant to § 315 in situations involving
dangerous persons in a custodial setting. Furthermore, we have previously rejected
application of the theory to create a duty on the part of a psychiatrist to control a patient
or warn others of his or her dangerous propensities, finding no special relationship, in
Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995).

We hold no special relationship existed between the State defendants and
Gideon which imposed a duty to control Gideon's conduct to prevent him
from causing harm to other persons or property.

However, even if we decided that a special relationship was present between a
parole officer and parolee and adopted the reasoning of Taggart, 118 Wash. 2d at
258,
or of Neakok, 721 P.2d at 1128-29, we would still need to address whether the duty
to
control extends to a duty to warn potential victims.

Neakok relied on California decisions in concluding that a parole officer
owed a
duty to warn the members of the small community where the parolee resided of his
dangerous tendencies. Cases from California, however, have found no duty to warn in
a situation much more egregious than the one in the present case. In Thompson v.
County of Alameda, 27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d 728 (1980), the
California Supreme Court determined there was no relationship between a county
which had granted an 18-year-old juvenile temporary leave into his mother's custody
and the murdered victim of the juvenile. The court held there was no duty to warn the
local police, the neighborhood parents, or the juvenile's mother that the juvenile had
indicated that if released, he would take the life of a young child residing in the
neighborhood.

The court noted several factors it considered when deciding whether a duty
should be imposed, including

"'the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered
injury, the
closeness of the connection between the defendant's conduct and the injury suffered, the moral
blame
attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden
to the
defendant and consequences to the community of imposing a duty to exercise care with resulting
liability
for breach, and the availability, cost, and prevalence of insurance for the risk involved.' [Citations
omitted.]
When public agencies are involved, additional elements include 'the extent of [the agency's]
powers, the
role imposed upon it by law and the limitations imposed upon it by budget.' [Citations omitted.]"
Thompson, 27 Cal. 3d at 750.

The Thompson court distinguished prior cases where it had imposed a duty
to
warn, Johnson v. State, 69 Cal. 2d 782, 73 Cal. Rptr. 240, 447 P.2d 352 (1968), and
Tarasoff, 17 Cal. 3d 425, on the ground that in each of those cases, a relationship
existed between the State and the plaintiff-victim, not because of the relationship
between the State and the third party. In Thompson, as in the present case, there was
no special relationship between the State and the victim, and the court refused to
impose blanket liability on the State for failing to warn. The court stated that parole and
probation release is an integral and continuing part of its correctional system, serving
the public by rehabilitating offenders and returning them to productive positions in
society, such that "'each member of the general public who chances to come into
contact with a parolee bear[s] the risk that the rehabilitative effort will fail.'"
Thompson,
27 Cal. 3d at 753.

Despite the fact there was an actual threat of harm in Thompson, the court
believed there were significant practical obstacles in the imposition of a duty to warn,
particularly recognizing that such a warning "may also negate the rehabilitative
purposes of the parole and probation system by stigmatizing the released offender in
the public's eye," 27 Cal. 3d at 755, and "might substantially jeopardize rehabilitative
efforts both by stigmatizing released offenders and by inhibiting their release." 27 Cal.
3d at 757. The court believed that even warning the parents of young children in the
neighborhood would be a significant drain on resources and would not likely have been
any more effective.

Another California case refused to impose a duty to warn in circumstances
somewhat similar to the present case. In J.A. Meyers & Co. v. Los Angeles County
Probation Dept., 78 Cal. App. 3d 309, 144 Cal. Rptr. 186 (1978), the court found no
duty to warn a probationer's employer that the probationer was a convicted embezzler.
Noting that the defendants did nothing to help the probationer acquire the job, the court
found no relationship existed such that the probation department should have revealed
the probationer's status and risked ruining the rehabilitative effort.

It is important to remember that the present case does not involve a situation
where any specific threat of harm had been directed against any certain individual or
ascertainable group. See, e.g., Rogers v. Dept. Of Parole & Comm. Corr., 464
S.E.2d
330 (S.C. 1995).

In Kansas, we have addressed a duty to warn in only a few cases, all factually
distinguishable from the present case. In Cansler, 234 Kan. 554, Syl. ¶ 3, we
recognized a legal duty to warn local law enforcement authorities and area residents of
major escapes of dangerous criminals. We did, however, point out that the duty to act
reasonably was commensurate with the risk involved.

The situation in Cansler should be compared to that in Jarboe v. Board
of
Sedgwick County Comm'rs, 262 Kan. 615, 938 P.2d 1293 (1997). Although we refused
to decide Jarboe on the ground that no duty was owed because it had not been
expressly raised by the parties, we recognized that the case could well have been
disposed of on that basis. 262 Kan. at 623. In Jarboe, the plaintiffs never alleged
that
any common-law duties existed to confine the juvenile offender and warn of his escape
beyond those they claimed were created by the personnel policies of the defendants.
Clearly, the duty found to exist so strongly in Cansler diminished considerably under
the
factual scenario of Jarboe.

Our appellate courts have also examined whether a duty to warn and protect
was owed in several other custodial settings, including C.J.W., 253 Kan. 1;
Cupples v.
State, 18 Kan. App. 2d 864, 861 P.2d 1360 (1993); and Washington v. State,
17 Kan.
App. 2d 518, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992) . The duty, however,
in
each of these cases was premised upon Restatement (Second) of Torts § 320, the duty
owed to one taken into custody, rather than upon § 319. Further, in Nero v. Kansas
State University, 253 Kan. 567, 583, 861 P.2d 768 (1993), the court focused not on a
duty owed pursuant to § 319 to control persons with known dangerous propensities, but
on the University's relationship as a landlord with its tenants such that it owed a duty to
use reasonable care for their protection. Thus, the duty to warn and protect discussed
in cases such as these is not applicable to the present situation, where absolutely no
special relationship existed between the State and Stephanie.

In the present case, the plaintiffs argue that female employees of Hamilton's
were a readily identifiable potential class of victims such that they should have been
warned. However, other classes of potential victims could also be identified, such as
those living in Gideon's building or neighborhood, women Gideon dated, and regular
patrons at bars Gideon frequented.

We further hold that even if a special relationship existed to control the conduct
of Gideon, the KDOC and Schirk owed no duty under § 315 to warn Stephanie about
Gideon's dangerous propensities in the absence of an express threat.

The trial court ruled that even if no special relationship existed such that the
State defendants owed a duty to Stephanie to warn her of Gideon's criminal history, the
unwritten notification policy created such a duty. The trial court held: "Moreover, as the
Court observed in its Finding of Fact, the DOC had adopted an unwritten policy of
warning individuals potentially at risk from parolees. After adopting this policy, it then
became incumbent upon the DOC to administer this policy in an effective manner." The
court later went on to state: "Moreover, it can be argued that the DOC's adoption of the
unwritten warning policy created a duty to those potentially and identifiably at risk.
Accordingly, an alleged breach of said duty would certainly mitigate against the
discretionary function exception."

In light of recent decisions by this court, this portion of the trial court's ruling is
clearly erroneous. Either Schirk and the KDOC owed a duty due to the fact that they
had a special relationship with Gideon, or they did not. No personnel policy, particularly
not an unwritten one, can create this duty.

In Jarboe, 262 Kan. 615, Syl. ¶ 1, we stated that prior case law
permitting a duty
to be based upon the failure to follow written personnel policies had been superseded
by the legislative enactment of K.S.A. 75-6104(d). Liability can no longer be
established by the failure to follow such a policy unless an independent duty of care is
owed to the injured party. 262 Kan. 615, Syl. ¶ 1. In Jarboe, the plaintiffs
argued that
the State defendants owed a duty in light of their failure to follow personnel policies
regarding the placement and control of a juvenile offender placed in a boys' home. We
found that 75-6104(d) barred imposition of such liability.

Consistent with this result and holding is our recent case of Woodruff v. City of
Ottawa, 263 Kan. 557, 566, 951 P.2d 953 (1997), where we also rejected an argument
that an unwritten policy had been created such that a police officer owed a duty to
protect the plaintiffs from the conduct of a third party.

Clearly the idea that the KDOC's unwritten policy in and of itself created a legal
duty on the part of Schirk and the KDOC to protect Stephanie is not viable. The holding
of the trial court which so implies is not correct.

Immunity under the KTCA

Having determined that the KDOC and Schirk owed no duty to Stephanie to
warn of Gideon's potential dangerousness, we need not base our decision on whether
the KTCA provides immunity from the Schmidts' claims. However, we easily find that
Schirk's conduct in failing to disclose Gideon's criminal history to his employer falls
within the discretionary function exception of K.S.A. 75-6104(e).

Although governmental entities do not have discretion to violate a legal duty, we
have not held that the existence of any duty deprives the State of immunity under the
discretionary function exception. If such were the case, K.S.A. 75-6104(e) could never
apply in a negligence action, for in order to recover for negligence, a plaintiff must
establish the existence of a duty. We explicitly rejected such an argument in Jarboe,
262 Kan. at 631.

In Beck, 241 Kan. at 30-31, we extensively discussed the history of the
discretionary function exception in Kansas, which need not be reiterated here. In
Hopkins v. State, 237 Kan. 601, 610, 702 P.2d 311 (1985), we stated:

"Discretion implies the exercise of discriminating judgment within the bounds of reason.
[Citation
omitted.] It involves the choice of exercising of the will, of determination made between
competing and
sometimes conflicting considerations. Discretion imparts that a choice of action is determined,
and action
should be taken with reason and good conscience in the interest of protecting the rights of all
parties and
serving the ends of justice."

In both Cansler, 234 Kan 554, and C.J.W., 253 Kan. 1, we held
that the duty to
confine prisoners or control their behavior and the duty to warn others about their
dangerous propensities were nondiscretionary. Those duties were imposed by law and
were ministerial. We also held in Allen v. Kansas Dept. of S.R.S., 240 Kan. 620,
731
P.2d 314 (1987), that the negligent performance of a ministerial act is not within the
discretionary function exception, even if the decision to perform the act is.

However, we recently decided in Woodruff, 263 Kan. 557, that the decision
whether to take an intoxicated individual into custody is discretionary and entitled to
immunity. In Bolyard, 259 Kan. 447, 912 P.2d 729 (1996), we ruled that SRS's
decision
to temporarily place children with their mother was entitled to immunity under the
discretionary function exception. In G. v. State Dept. of SRS, 251 Kan. 179, 833
P.2d
979 (1992), we held the removal of a child from a foster care home by SRS was within
the discretionary function exception.

In Beebe v. Fraktman, 22 Kan. App. 2d 493, 921 P.2d 216, the Court of Appeals held that the decision whether to open a file for
investigation of allegations of child abuse is a discretionary function. That court also
held in Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 931 P.2d 26 (1997),
that
the manner of conducting an investigation into a charge of child abuse is a discretionary
function.

In Jarboe, 262 Kan. 615, we discussed how the placement decision regarding
a
juvenile offender was exactly the type of discretionary decision that the KTCA was
intended to protect. We further quoted from Beck, 241 Kan. at 36-37:

"We do not believe that the legislature, in enacting the Kansas Tort Claims Act, intended
to
subject parole or probation decisions of the authorities, whether the Kansas Adult Authority or
the
sentencing judge, to litigation in order to determine whether the Authority or judge turned every
tap and
jumped through every hoop in arriving at a decision to place an inmate on parole or to impose
conditions
on a conditional release. It is these discretionary functions of state agencies or employees which
the
legislature intended to place beyond the pale of tort litigation.

"The possibility of harm to third persons exists every time a prisoner convicted of violent
crime is
released from custody and placed back into society, yet the time always arrives when release
must be
effected. A decision as to the imposition of conditions, if any, must be made. Such a decision
involves the
exercise of great discretion. Boan had to be released, under state law. Whether
conditions might have
been imposed which would have prevented this catastrophe is an open question. Hindsight,
always better
than foresight, indicates some conditions might have had some effect. But such a
decision, made now,
would merely second-guess the parole authority, the agency in whose hands the legislature entrusted the discretion."

In the present case, the discretionary function exception likewise applies. No
duty was imposed by law upon Schirk to notify the employers of his parolees of their
criminal history, even had we found a special relationship existed between Schirk and
Gideon.

Furthermore, in deciding whether to inform Hamilton of Gideon's criminal history,
Schirk was required to balance society's interest in rehabilitating Gideon by ensuring he
remained employed with the potential danger to third persons that he would reoffend.
He had to weigh various risk factors, including Gideon's past and present conduct, in
determining the danger posed to others. Schirk had no knowledge of any particularized
threat to any of Gideon's co-workers, and as time passed, Schirk may have been less
likely to believe there was a danger to such persons.

The Schmidts emphasize that Schirk admitted he was aware that Gideon's
female co-workers were at high risk of danger, but still failed to notify Hamilton of
Gideon's criminal history pursuant to the KDOC's third-party-at-risk policy. However,
Schirk clearly stated that he did not believe the waitresses to be at such risk that they
required notification under the policy. This decision is exactly the type which requires
discretion, even if under current law or policy such discretion has been removed and
employers are now required to be notified.

In light of what we have previously stated, we need not discuss utilization of the
exception of K.S.A. 75-6104(d) to dispose of the Schmidts' claims against Schirk and
the KDOC, nor do we need to consider whether the police protection exception of 75-6104(n)
also applies to bar the Schmidts' claims.

The trial court's denial of summary judgment in favor of the KDOC and Schirk is
reversed.

Duty--Hamilton defendants

The Hamilton defendants argue the trial court erred in concluding they owed a
continuing duty to Stephanie which still existed at the time of her death, after she had
ceased working at their business of her own volition. They emphasize that Gideon
caused Stephanie's injuries and death during a time in which he was not providing any
services for Hamilton's, at a place completely removed from its premises, and with
absolutely no nexus to the business. They claim the logical effect of the trial court's
conclusion, if allowed to become the law of Kansas, "would essentially hold an
employer liable to any former employee or customer for the conduct of an employee
without regard to the relationship among the parties, the passage of time, the location,
or any nexus to the employer's business."

Hamilton's further cites our recent case of Beshears v. U.S.D. No. 305, 261
Kan.
555, 930 P.2d 1376 (1997), to argue there exists no special relationship upon which a
duty to control Gideon's conduct may be based. Hamilton's contends the tragic events
of this case were not foreseeable as a matter of law and asks us not to accept the
broad and all encompassing "but for" argument that is contrary to our accepted
principles of causation.

The Schmidts do not contend the Hamilton defendants are liable under the
respondeat superior doctrine, but rather that Hamilton's negligence lies in hiring and
retaining Gideon, whom Hamilton's should have known had dangerous propensities.
They further contend it is a jury question whether the negligent hiring and retention of
Gideon was the proximate cause of the attack upon Stephanie. The Schmidts rely in
part on the Missouri case of Gaines v. Monsanto Co., 655 S.W.2d 568 (Mo. App.
1983),
and a string of Kansas cases dealing with the issue of negligent hiring and retention of
unfit or incompetent employees.

In reaching its decision, the trial court relied on the fact that Kansas has long
recognized a claim premised upon the negligent hiring and retention of an employee.
Further, the court noted that employers are required to provide suitable and competent
fellow servants, citing Jackson v. City of Kansas City, 235 Kan. 278, 304, 680 P.2d
877
(1984). The trial court distinguished this duty both from respondeat superior liability and
from the duty to control the conduct of third parties set forth in the Restatement
(Second) of Torts § 315, discussed in the claims against the KDOC and Schirk. The
court held that the duty was abrogated when Hamilton negligently hired and continued
to retain Gideon as an employee; thus, it did not matter that the injuries occurred after
Stephanie was no longer an employee, at a time not during business hours, and at a
place completely apart from the business premises.

The trial court found the factual situation to be similar to Gaines, where the
plaintiffs claimed the defendant employer had been negligent in hiring and retaining an
employee with dangerous proclivities who had murdered their daughter in her
apartment. The employee was placed in a position where he would come into contact
with female employees and learn their names and addresses. The Gaines opinion
stated it was mindful of the adverse effect that recognizing such a cause of action
would have on employment practices, but broadly held that matters of foreseeability
and proximate cause were jury questions. The court held: "Generally it is sufficient to
constitute proximate cause that the negligence charged was the efficient cause which
set in motion the chain of circumstances leading up to the injury." 655 S.W.2d at 571.

In Gaines, the Missouri Court of Appeals did recognize in a footnote that
"plaintiffs would not make a prima facie case of liability solely by proving that the
employer actually knew of the employee's criminal record. Liability would depend,
among other things, on the nature of the criminal record and the surrounding
circumstances. See Evans v. Morsell, 395 A.2d at 484." 655 S.W.2d at 571 n.2.
Additionally, another Missouri Court of Appeals panel distinguished Gaines in
Hollingsworth v. Quick, 770 S.W.2d 291, 294 (Mo. App. 1989), where it was said:

"[B]ut in that case the plaintiff alleged not only that the employee had convictions for rape
and assault, but
the employer knew the employee had made improper and offensive advances toward fellow
employees
and yet did nothing when in possession of actual knowledge that retention of the employee
created a
potential hazard to those with whom he came in contact."

The present case is also distinguishable from Gaines in that here, Gideon had
been described as a very polite, dependable, soft-spoken, likeable, and trustworthy
employee. Hamilton's also knew of no improper or offensive behavior directed at fellow
employees.

The specific finding of the trial court in the present case was that a duty existed
at the time Stephanie was employed at Hamilton's to hire and retain suitable co-employees. The
trial court held that whether the duty was breached and whether any
alleged breach resulted in a foreseeable murder was a question for the jury.

"In a negligence action, summary judgment is proper if the only questions presented are
questions of law. To recover for negligence, the plaintiff must prove the existence of a duty,
breach of that
duty, injury, and a causal connection between the duty breached and the injury suffered.
Whether a duty
exists is a question of law. Whether the duty has been breached is a question of fact."

The Schmidts do not contend that a "special relationship" exists as we have
previously discussed herein in relation to the claims made against the State. They are
not asserting that Hamilton's had a duty to control Gideon to prevent harm to
Stephanie. Rather, their contention is that Hamilton's had a duty not to negligently hire
and retain Gideon and that this duty was breached, thereby causing their injuries.

We have, in Kansas, broadly stated that

"a master may be liable for injuries to a third person which are the result of the incompetence
or unfitness
of his servant where the master was negligent in employing the servant or in retaining him in
employment
when the master knew or should have known of such incompetence or unfitness of the servant."
Balin v.
Lysle Rishel Post No. 68, 177 Kan. 520, Syl. ¶ 4, 280 P.2d 623 (1955).

This statement, however, specifically relates to incompetence or unfitness, and
the underlying facts of the string of cases where it has been stated relate mainly to acts
occurring at the employer's business location or during the conduct of the employer's
business.

Balin involved injuries to a hotel employee who was damaged by the
negligent
discharge of a firearm by another hotel employee who had a prison record, worked on
firearms on the premises, and at times engaged in "horseplay" around the lobby.
Although cases were referred to relating to a master's negligence in maintaining a
servant's employment, the evidence was held not to show that the servant was
incompetent or unfit, and the master was not liable in damages to one servant for
injuries inflicted on him by the act of a fellow servant. Viewed factually and focusing on
the result, Balin provides no persuasive authority for the Schmidts' arguments in our
case.

Murray v. Modoc State Bank, 181 Kan. 642, 313 P.2d 304 (1957), involved a
suit
against a bank by a customer who was assaulted by the bank's employee, Breithaupt.
Murray had a bad relationship with Breithaupt and attempted to transact his business
by mail. Breithaupt went to Murray's home and demanded that checks be deposited as
he directed and that a property settlement be furnished. When Murray declined,
Breithaupt pulled him off his porch, punched him, threw him to the ground, and inflicted
injuries on him.

In allowing recovery under these circumstances, the opinion spoke of protecting
a patron invitee and stated: "The patron was as much within the portals of the bank as
if he stood before the cashier's window." 181 Kan. at 649. The doctrine of respondeat
superior was not involved, and the issue was whether the bank was negligent in
retaining Breithaupt, who had propensities toward violence. Cases were cited where
employees had assaulted other parties or co-workers and these facts were known to
the employer. See Zamora v. Wilson & Co., 129 Kan. 285, 282 Pac. 719
(1929)
(finding no claim for tortious act against fellow employee where act not done in the
promotion of the master's business or as a part of the employee's duties); Gabbard v.
Sharp, 167 Kan. 354, 205 P.2d 960 (1955) (holding waitress not allowed to recover for
assault by intoxicated fellow employee because the employee had stepped beyond the
scope of his employment and was engaged in a personal venture of his own, although
waitress also filed no brief and did not support her case on appeal).

The Murray opinion also cited Kiser v. Shelly Oil Co., 136 Kan.
812, 814, 18 P.2d
181 (1933), where a jury found an employer negligent "by maintaining incompetent help
and insufficient door equipment." A door had been slammed by an employee against a
customer at a filling station, breaking the glass and injuring the customer. In concluding
that a cause of action was alleged against the Modoc State Bank on a negligence
theory, this court held that an employee "who is a quarrelsome and dangerous person
is an 'unfit' person within the meaning of that term." 181 Kan. at 654.

Once again, Murray was a case where the location and time of the assault
played a part in holding the employer liable. In the present case, Gideon's conduct
while at Hamilton's was generally positive, and there existed no evidence of
quarrelsome or dangerous behavior directed at fellow employees or customers.

Another case in the sequence is Stricklin v. Parsons Stockyard Co., 192 Kan.
360, 388 P.2d 824 (1964), where liability attached to acts committed on the employer's
premises during business hours where an employee was given to playing pranks
involving physical force upon customers. The employee had lifted Stricklin's feet while
he was seated on the top of a cattle pen, causing him to fall on a concrete floor and
resulting in injury.

Stricklin was not an intentional infliction of injuries case, and while the
doctrine
of respondeat superior was not involved, it was alleged the employers knew or had
reason to know both of the employee's propensities for over 1 year, and of eight
separate acts of "horseplay" involving physical force upon persons lawfully in and
around the stockyards. Our opinion held: "[G]iving the allegations all reasonable
inferences, we think it must be said that [the employee] was an incompetent and unfit
employee retained by [the employers] after they knew or had reason to know of his
propensities." 192 Kan. at 367.

In Stricklin we again have a fact situation where the conduct of the employee
giving rise to the alleged negligent act occurred on the business premises during
business hours and involved numerous acts of improper behavior well known to the
employers. This is factually very different from the facts we face in our case.

Next in the chronological order of our Kansas cases is Hollinger v. Stormont
Hosp. & Training School for Nurses, 2 Kan. App. 2d 302, 307, 578 P.2d 1121,
rev.
denied 225 Kan. 844 (1978). Here, the Court of Appeals limited the broad statements
from Stricklin and Murray and approved the following instruction:

"[T]here must be some causal relationship between the dangerous propensity or quality of the
employee,
of which the employer has or should have knowledge, and the injuries suffered by the third
person; the
employer must, by virtue of knowledge of his employee's particular quality or propensity, have
reason to
believe that an undue risk of harm exists to others as a result of the continued employment of that
employee; and the harm which results must be within the risk created by the known propensity
for the
employer to be liable."

In Hollinger, the plaintiff was selling and delivering newspapers to patients
and
employees in the hospital when a janitor, claiming to be playing a practical joke,
approached her from behind and attempted to remove a newspaper from her bag,
jerking it in such a manner that she was injured. The instruction referred to above was
coupled with one that stated that in order for plaintiff to recover, she must prove the
employee was incompetent or unfit and that the defendant was negligent in employing
and retaining the employee when the defendant knew or should have known of such
incompetence or unfitness. While two causes of action were maintained, one under the
doctrine of respondeat superior and one for failing to exercise reasonable care in the
selection, employment, training, control, and retention of an employee, this case was
deemed fundamentally different from Balin, Murray,
andStricklin, as follows:

"In Stricklin, the employer had or should have had knowledge of its employee's
dangerous inclination
toward pranks and practical jokes. In Murray, the bank had knowledge of its
managing officer's violent
dislike for plaintiff and his inability to control his emotions. In this case, defendant had
knowledge that
Rome was not doing his work properly, had displayed a lack of interest in his job, and that the
haphazard
way in which he did work and left his equipment around was dangerous to patients and other
employees.
The resulting situation is nearer that in Balin since there as here defendant had little
or no knowledge of its
employee's propensity for dangerous 'horseplay.'" 2 Kan. App. 2d at 306-07.

Although the Hollinger case was submitted to a jury and resulted in a verdict
for
the defendant, the injury did occur, once again, on the employer's premises during
normal hours and was caused by an employee whose work was unsatisfactory.

Plains Resources, Inc. v. Gable, 235 Kan. 580, 586, 682 P.2d 653 (1984), is a
factually interesting case of a "big, wild, reckless, rough, unkept" employee who
sabotaged one of plaintiff's oil wells by plugging the well. Both the theories of
respondeat superior and negligent hiring and retention of an incompetent or unfit
employee were discussed as the basis for imposing liability on the employer as well as
for awarding punitive damages. However, the actions here again took place at the
place of employment, were directly associated with the employer's business, and did
not occur at a social event totally removed from the employer's business or purposes.

Finally, we have our most recent decision of Kansas State Bank & Tr. Co. v.
Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991), which
involved the sexual molestation of a special education child by an employee retained by
a school district to transport students enrolled in the program. Syllabus ¶ 1 broadly
states:

"When a third party asserts a negligent retention and supervision claim against an employer,
liability
results not because of the employer-employee relationship, but because the employer had reason
to
believe that an undue risk of harm to others would exist as a result of the employment of the
alleged
tortfeasor. The employer is subject to liability only for such harm as is within that risk. If,
therefore, the
risk exists because of the quality of the employee, there is liability only to the extent that the
employer had
reason to believe would be likely to cause harm. However, it is not necessary that the precise
nature of
the injury alleged by the third-party plaintiff would have been foreseen by the employer."

There were six separate issues in this complicated case, but of interest here was
the sufficiency of the evidence to prove that the school district and the employer knew
or should have known that an undue risk of harm would exist because of the
employee's employment. The instructions were much like those approved of in the
Hollinger case, but carried a heightened duty in stating that "all persons entrusted
with
children have a special responsibility to supervise their charges."

The cause of action was again based on the actions of an employee engaged in
his employment and at the normal place where his employment services were
rendered. When viewed in its entirety, the case does not provide a sufficient basis for
us to impose upon an employer the obligation to be legally liable and responsible for
the illegal acts of employees which occur at social settings away from the place of
employment or to former co-workers who no longer remain in the employ of the
employer. Such a result has the legal effect of making an employer the virtual insurer
of the safety of former co-workers for any tortious or criminal action which an existing or
even former employee may perpetrate.

In each of the Kansas cases upon which liability of the employer was predicated,
the existence of a duty to the injured party was based on actions against a customer or
co-worker which took place on the working premises during the time employment
services were normally rendered. In none of such cases was the employee not acting
in the course of employment, nor was the injurious action removed from the employer's
premises or without any nexus to the employer's operations.

None of the Kansas cases cited should be unduly extended to find that a duty
comes into existence whereby an employer must ascertain the detailed history of every
employee, whether criminal or not, and terminate the employment of an individual who
is performing acceptable services and is clearly not unfit or incompetent, but who does
pose some degree of risk due to previous actions. This case involves a tragic set of
circumstances, but if a duty is found to exist here, as a matter of law, the liability of
employers is unrealistically increased and the obligations of an employer become
virtually unlimited.

What we have previously said severely limits our reliance on the authority of the
Missouri Court of Appeals' opinion in Gaines, 655 S.W.2d 568, and we specifically
decline to follow it as the law of Kansas. It is factually different and unduly broad in its
scope and statements.

Cases can be found from other jurisdictions to support the arguments of both the
Hamilton defendants and the Schmidts. While we will not attempt to compare or
distinguish such cases, we believe the better reasoned view is found in cases such as
Connes v. Molalla Transport System, Inc., 831 P.2d 1316 (Colo. 1992) (recognizing
an
action for negligent hiring, but finding employer had no legal duty to conduct
independent investigation into trucker's nonvehicular criminal background in order to
protect a member of the public from a sexual assault committed in the course of
employment), and F & T Co. v. Woods, 92 N.M. 697, 594 P.2d 745 (1979)
(holding that
in negligence action brought by rape victim against employer of alleged rapist, it was
not enough that victim prove that employer was negligent in hiring or retaining alleged
rapist; in addition, victim had to prove that negligent hiring or retention of alleged rapist
was foreseeable and proximate cause of the rape). See generally Annot., Employer's
Knowledge of Employee's Past Criminal Record as Affecting Liability for Employee's
Tortious Conduct, 48 A.L.R.3d 359 and supplement thereto.

The trial court erred in finding that a duty existed on the part of the Hamilton
defendants to Stephanie upon which a cause of action could be premised.

Due to the result we reach, we need not discuss the questions of proximate
cause or foreseeability.

The trial court's granting of summary judgment to the KDOC and Schirk on the
42 U.S.C. § 1983 claim is affirmed. The trial court's denial of the remaining summary
judgment motions of all of the defendants is reversed.